Collateral Consequences

Collateral consequences, often also called collateral sanctions, civil disabilities, or civil penalties, are the indirect legal effects of a criminal conviction. In contrast to the penalties imposed at trial, such as incarceration, probation, or a fine, they flow either automatically from the fact of a criminal conviction or may be administratively imposed on conviction. They may be based on state or federal law. Collateral consequences differ from private discrimination based on a criminal conviction, because they result from state action.

The distinction between collateral sanctions and primary penalties remains ambiguous. Courts generally consider all indirect sanctions— those not imposed directly by the court even though they result from a subsequent state action—collateral, and therefore not punishment. Constitutional protections otherwise extended to criminal offenders at sentencing, such as the Ex Post Facto Clause, do not apply to indirect sanctions. The accused usually has no right to be informed about collateral sanctions at the plea colloquy.

Some jurisdictions have established rules requiring courts to inform criminal defendants of potential immigration consequences. Lack of such information has led to the reversal of convictions. Courts have required such advance information only for a few other drastic collateral sanctions, such as civil commitment for sex offenders.

Criminal defendants are rarely informed of the panoply of collateral consequences that may befall them, largely because none of the players in the criminal justice system have easy access to such information. Collateral sanctions may be grouped into three categories: restrictions on an ex-offenders’ participation in the political life (among them disenfranchisement, ban on holding public office, exclusion from serving on a jury; deportation); limitations on employment opportunities (among them a host of licensing restrictions, denial of gun licenses, restrictions on participation in government programs, suspension of driver’s license); limitations on governmental benefits (among them denials of public housing and food stamps; denial of student loans). While some collateral sanctions are based on a direct connection between the criminal conduct and the collateral sanction— pedophiles are barred from employment in schools or day-care centers—many others lack such a connection. The former serve an incapacitative function; the latter remain largely unjustified.

Because of their scope, collateral consequences frequently hinder the rehabilitation or re-entry of exoffenders. They limit their ability to obtain employment and to obtain transitionary housing and welfare benefits. Violations of collateral sanctions lead to criminal sanctions, many with substantial penalties attached. Collateral penalties also have a dilatory impact on the ex-offenders’ families, especially their children and their communities.

While collateral sanctions have long existed in U.S. law, they have dramatically expanded in number and scope during the 1980s and 1990s. Automatic sanctions have impacted drug and sex offenders most dramatically, in many cases without a specific link between the crime of conviction and the collateral sanction.

Ex-offenders may encounter substantial difficulties in removing collateral sanctions. Some states provide relief that is awarded almost automatically and leads to the full restoration of rights; others require gubernatorial pardons to allow ex-offenders to regain at least some rights.

NORA V. DEMLEITNER

References and Further Reading

  • ABA Standards for Criminal Justice. 3rd Ed. Collateral Sanctions and Discretionary Disqualification of Convicted Persons, 2004.
  • Chin, Gabriel J. and Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, Cornell L. Rev. 697 (2002): 87.
  • Demleitner, Nora V., Preventing Internal Exile: The Need for Restrictions on Collateral Sentencing Consequences, Stan. L. & Pol’y Rev. 153 (1999): 11.
  • ———, ‘Collateral Damage’: No Re-entry for Drug Offenders, Vill. L. Rev. 1027 (2002): 47.
  • Mauer, Marc, and Meda Chesney-Linds, eds. Invisible Punishment: The Collateral Consequences of Mass Imprisonment. The New Press, 2002.
  • Mele, Christopher, and Teresa A. Miller, eds. Civil Penalties, Social Consequences. Routledge, 2005.
  • Office of the Pardon Attorney. U.S. Dep’t of Justice, Federal Statutes Imposing Collateral Consequences Upon Conviction.
  • Petersilia, Joan. When Prisoners Come Home: Parole and Prisoner Reentry, 2003.

See also Civil Death; Corruption of Blood; Criminalization of Civil Wrongs; Sentencing Guidelines

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